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Siva Afi Investment Ltd v Attorney General [2012] WSCA 17 (17 December 2012)

COURT OF APPEAL OF SAMOA

Siva Afi Investment Limited and Siva Afi Designs Limited v The Attorney General [2012] WSCA 17

Case name: Siva Afi Investment Limited and Siva Afi Designs Limited v The Attorney General

Citation: [2012] WSCA 17

Decision date: 17 December 2012

Parties:
SIVA AFI INVESTMENT LIMITED & SIVA AFI DESIGNS LIMITED a duly incorporated company located at Sogi, Apia (Appellant) v THE ATTORNEY GENERAL on behalf of the Minister of Natural Resources and Environment (Respondent)

Hearing date(s): 22 November 2012

File number(s): C.A. 12/12

Jurisdiction: Civil

Place of delivery: Mulinuu

Judge(s):
Fisher J
Hammond J
Justice Salmon J

On appeal from:

Order:

Representation:
Olinda Woodroffe for appellant
Muriel Lui for respondent

Catchwords:

Words and phrases:

Legislation cited:
Taking of Land Act 1964

Cases cited:
Director of Buildings and Land v Shaun Fung Ironworks Ltd [1995] 2 AC 111
Hughes v Doncaster Metropolitan Borough Council [1991] 1 A.C 382
Harvey v. Crawley Development Corporation [1957] 1 Q.B.485, 493
Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109
Minister of Works v Cromwell Farm Machinery Ltd [1986] 2 NZLR 29

Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

C.A. 12/12

BETWEEN:

SIVA AFI INVESTMENT LIMITED & SIVA AFI DESIGNS LIMITED a duly incorporated company located at Sogi, Apia.

Appellant

AND

THE ATTORNEY GENERAL on behalf of the Minister of Natural Resources and Environment

Respondent

Coram:
Honourable Justice Fisher
Honourable Justice Hammond
Honourable Justice Salmon
Counsel: Olinda Woodroffe for appellant
Muriel Lui for respondent
Hearing: 22 November 2012
Judgment: 17 December 2012

JUDGMENT OF THE COURT

Introduction

[1] The appellants, whom we will collectively refer to as Siva Afi, were the tenants of two leasehold parcels of land in Apia, on which they conducted their business. This land was owned by the Samoa Land Corporation. Siva Afi had the benefit of a 20 year lease commencing on February 2005, with a right of renewal for a further 20 years. This land was owned by the Samoa Land Corporation. Siva Afi had the benefit of a 20 year lease commencing on February 2005, with a right of renewal for a further 20 years.
[2] Siva Afi’s business complex was that of a bar/restaurant, an entertainment area and a factory and retail complex. The longer term vision for Siva Afi was to create a Siva Afi Entertainment Centre “to rival the highly successful Polynesian Cultural Centre in Hawaii”. The production facility was contemplated to produce high quality screen printing and signage for a new retail outlet.
[3] This leased land at Sogi was in a strategic location adjacent to the downtown area of Apia. It was also a relatively large site close to other public buildings in Apia such as the Parliament, the Executive Building, and Courts.
[4] In October 2006, the Samoa Land Corporation advised Siva Afi that the government wanted to acquire its land. The parties were unable to locate and agree on land for relocation of Siva Afi’s business. Eventually the leasehold was compulsory acquired by a Proclamation under the Taking of Land Act 1964 issued by the Minister of Natural Resources and Environment on 20 November 2009.
[5] Subsequent to the compulsory acquisition of the Siva Afi land, a substantial new government building, the Tui Atua Tupua Tamasese Building, which now graces the Apia skyline and houses a substantial number of government personnel, was erected on it.
[6] The parties have been unable to resolve what compensation should be paid to Siva Afi. A sum of $400,000.00 was advanced through the Public Trust, to Siva Afi. It was not content with the sum paid.
[7] In proceedings in the Supreme Court of Samoa in succeeded in recovering further compensation in the sum of $285,356.80 plus interest on that sum of for two years. That judgment was delivered by Vaai J on 13 July 2012.
[8] Siva Afi takes the view that even with those additional monies the compensation afforded to it is inadequate on the facts, and having regard to the provisions of the Taking of Land Act. It has appealed to this court.

The legislation

[9] Both the structure of the Act and its underlying scheme are in terms which are very similar to the compulsory acquisition legislation in New Zealand and the United Kingdom.
[10] Under s7 of the Act, both customary land and required for any public purpose may be taken by the Head of State, acting on the advice of the relevant Minister.
[11] Under s8 the kinds of interests which may be taken are defined very broadly, and for present purposes clearly encompass a leasehold interest.
[12] Land can be taken by Proclamation, under s15 of the Act. If that occurs, the Proclamation must be registered under s17 of the Act.
[13] Part 3 of the Act deals with Compensation. Section 25 of the Act provides that:

Every person having any estate or interest in any land taken under this Act for any public purpose, or injuriously affected thereby, or suffering any damage from the exercise of any of the powers given by this Act, shall be entitled to a full and just compensation for the same from the minister. (Emphasis added.)

[14] The date provided for the assessment of compensation, in the case of land taken by Proclamation is “the date on which the land became by Proclamation vested in Western Samoa” (s37(1)).
[15] By s37(2), in determining the amount of compensation to be awarded, no allowance is to be made on account of the taking of any land being compulsory. The value of the land shall be taken to be the amount which the land if sold in the open market by a willing seller on the specified date might be expected to realise.

The underlying principles

[16] It may be helpful to stress the underlying principles of this legislation, which rests on the same premises as in England, New Zealand and Hong Kong. Although it is a lengthy extract, a classic statement, and one that is worth setting out in full, is the speech of Lord Nicolls of Birkenhead in Director of Buildings and Land v Shaun Fung Ironworks Ltd [1995] 2 AC 111, at p 125 eq seq, for the Judicial Committee of the Privy Council.

Fair compensation

The purpose of these provisions... is to provide fair compensation for a claimant whose land had been compulsorily taken from him. This is sometimes described as the principle of equivalent. No allowance is to be made because the resumption or acquisition was compulsory; and land is to be valued at the price it might be expected to realise if sold by a willing seller, not an unwilling seller. But subject to these qualifications, a claimant is entitled to be compensated fairly and fully for his loss. Conversely, and built into the concept of fair compensation: a person is entitled to compensation for losses fairly attributed to the taking of land, but not to any greater amount. It is ultimately by this touchstone, with its two facets that all claims for compensation succeed or fail.

Land may, of course, have special value to a claimant over and above the price it would fetch if sold in the open market. Fair compensation requires that he should be paid for the value of the land to him, not its value generally or its value to the acquiring authority. As already noted, this is well established. If he is using the land to carry on a business, the value of the land to him will include the value of his being able to conduct his business there without disturbance. Compensation should cover this disturbance loss as well as the market value of the land itself. The authority which takes the land on resumption or acquisition prevents the claimant from continuing his business on the land. The expenses and any losses he incurs in moving his business to a new site will ordinarily be the measure of the special loss he sustains by being deprived of the land and disturbed in his enjoyment of it. If, exceptionally, the business cannot be moved elsewhere, so it simply has to close down, prima facie his loss will be measured by the valued of the business as a going concern. In practice it is customary and convenient to assess the value of the land and the disturbance loss separately, but strictly in law these no more than two inseparable elements of a single whole in that together they make up the value of the land to the owner: see Hughes v Doncaster Metropolitan Borough Council [1991] 1 A.C 382, 392, per Lord Bridge of Harwich.

Three conditions

The application of the general principle of fair and adequate compensation bristles with problems. As useful guidelines there are three conditions which must be satisfied. First, it goes without saying that a prerequisite to an award of compensation is that there must be a causal connection between the resumption or acquisition and the loss in question. ...

The adverse consequences to a claimant whose land is taken may extend outwards and onwards a very long way, but fairness does not require that the acquiring authority shall be responsible and infinitum. There is a need to distinguish between adverse consequences which trigger a claim for compensation and those which do not. A similar problem exists with claims for damages in other fields. The law describes losses which are irrecoverable for this reason as too remote. In Harvey v. Crawley Development Corporation [1957] 1 Q.B.485, 493, Denning L.J. gave the example of the acquisition of a house as his home, but not the cost of buying a replacement house as an investment. The latter would be to remote.

The familiar and perennial difficulty lies in attempting to formulate clear practical guidance on the criteria by which remoteness is to be judged in the infinitely different sets of circumstances which arise. The overriding principle of fairness is comprehensive, but it suffers from the drawback of being imprecise, even vague, in practical terms. The tools used by lawyers are concepts of chains of causation and intervening events and the like. Reasonably foreseeable, not unlikely, probable, natural are among the descriptions which are or have been used in particular contexts. Even the much maligned epithet “direct” may still have its uses as a limiting factor in some situations.

In the present case it is not necessary to pursue these problems in relation to claims for compensation on resumption. No dispute arises over remoteness in the instant case. Suffice to say as a matter of general principle, to qualify for compensation the loss must not be too remote. This is the second condition.

Fairness requires that claims for compensation should satisfy a further, third condition in all cases. The law expects those who claim recompense to behave reasonably. If a reasonable person in the person in the position of the claimant would have taken steps to eliminate or reduce the loss or the unreasonable part of it. Likewise if a reasonable person in the position of the claimant would not have incurred, or would not incur, the expenditure being claimed, fairness does not require that the authority should be responsible for such expenditure. Expressed in other words, losses or expenditure incurred unreasonably cannot sensibly be said to be caused by, or be the consequence of, or be due to the resumption.

The Supreme Court award

[17] The award of the Supreme Court was as follows

• (a) Compensation awarded to the claimants :
  

(b) Deductions:

(c) The Attorney-General was therefore ordered to pay the difference of $285.365.80
(d) Interest to accrue at 12% on the amount awarded of $285.365.80 from 16 June 2010.
(e) Each party to bear its own costs.

The grounds of the appeal against the award

[18] The grounds of appeal have been something of a moveable feast. As finally confirmed at the hearing before us they were confirmed as a claim for the loss of business income (which had been denied at trial); a claim for a greater sum for the valuation for improvements; the deduction for unpaid rent is resisted; and various items of legal costs are claimed. These include the disallowance of any legal fees on the compensation claim; the ruling that costs should lie where they fell in the Supreme Court; and the issue of costs in this court on this appeal. We will deal with the issue under those heads.

Loss of business income

[19] Siva Afi maintained that it had enlarged its business activities from its original shop at Matautu to the half acre site at Sogi. However, the statutory Proclamation deprived it off its major new site. It is not an extinguishment case. It is what could fairly be described as a “massive disruption” case. What Siva Afi had to do is to withdraw to its original premises at Matautu and look for, with such assistance as it can get from others, a new location which met its business needs. It has still not been able to achieve that end. Its business has partially carried on at Matautu.
[20] In the Supreme Court the judge found against the claim of $951,000 for loss of business income, on two bases. The first ground was that that claimant had “failed to prove their losses”. The second, arising out of a supposed “duty to relocate”, is that the behaviour of the appellants disentitled them to compensation. As the judge put it, “their complacency and indifference to relocation deprived them to their rightful entitlement to compensation”.
[21] The appellant’s claim for $951,000 was based on a valuation report prepared my Mr Edward Wilson. He is a certified public accountant with university degrees from University of Canberra and Victoria University in Wellington, New Zealand. He has worked as a chartered accountant and financial consultant for more than a quarter of a century. He has expertise in the areas of business valuation, insolvency and reconstructions, preparation of feasibility studies, and financing proposal. No challenge was mounted to his expertise. His instructions were to report on loss of business income, loss of goodwill, and with respect to the loss of the lessee’s interest for the remaining term of the lease. The last two items are not in contention on this appeal.
[22] Mr Wilson employed the Future Maintainable Earnings method to value Siva Afi’s enterprise. Capitalisation of maintainable earnings is an orthodox valuation method. It involves capitalising the future maintainable earning by the application of a suitable chosen capitalisation rate or multiple. The definition of earnings will routinely be profit after tax (“PAT” or earnings before interest and tax (“EBIT”). This methodology, which in reality is a surrogate for the discounted cash flow method, requires consideration of several factors, including: (a) an estimate of future maintainable earnings having regard to historical operation results and forecasts of future earnings; (b) determination of an appropriate capitalisation rate which will reflect the risks inherent in the business including sensitivity to industry risk factors, growth prospects, the general economic outlook and alternative investment opportunities; and (c) a separate assessment of any surplus or unrelated assets and liabilities which are not essential to the continuing earning capacity of the business operations.
[23] As to the temporal term to be adopted, Mr Wilson considered that the usual range of multiple factors for an exercise of this kind is two to five years, depending on the nature of the business. He thought (rightly as it has turned out) that it would be almost impossible for the business to relocate itself to a similar leased property, and that it would take three to five years for the business to fully re-established itself to a position that it would have been in had the termination of its lease not taken place. He settled on a multiple figure of three years as being fair.
[24] As to a capitalisation rate, he adopted the capitalisation rate charged by banks in Samoa on the borrowing at the time of the lease termination. This rate he found to be 12%.
[25] Mr Wilson then made various adjustments, bearing in mind that his methodology was based on net profits before income tax. They included:

• He excluded the Matautu shop operating costs as being a separate operation.
• He added back owners salaries and consultancy costs.
• He deducted a 25% portion of telephone and vehicle costs paid by the business for the owners.
• He added back non-cash transaction like depreciation and amortisation.
• He deducted interest on borrowings.

[26] He thought it necessary to make an allowance for delay in compensation in other words, he thought it fair to assume that both parties had agreed to compensation for the termination of the lease. This he thought should be dealt with by charging interest equivalent to the average ruling Fixed Deposit rates at the time of about 5%.
[27] On this footing, Mr Wilson arrived at a Future Maintainable Profits calculation of (rounded off) $950,000 as at the date of hearing.
[28] This was the only evidence before the court. There was not a competing valuation from the Attorney.
[29] The judge held, “The court finds it impossible to assess with any degree o accuracy the extent or value of the business loss or amount of profits lost pursuant to the acquisition. The claimants have failed to provide their losses. The claim is accordingly rejected.”
[30] The Attorney sought to support the holding, in this court, by saying that the claim “was premised on the problematic, inaccurate and unclear method with was used by the appellants to calculate [their] loss”.
[31] We do not accept the argument. The method adopted by Mr Wilson was clear, as described above. FME is one of the usual methods adopted by professional valuers. Every method of valuation has its strengths and weaknesses. But there is no room for the suggestion that this was a method which should not have been adopted in this case; it is very commonly used in smaller business and taking cases.
[32] It was certainly not unreasonable to postulate – and it appears to accord with the evidence in this case – that it would take time for this severely disrupted business to relocate itself and be properly up and running again.
[33] The assumptions Mr Wilson made were sensible. He had to fix on some period to examine the accounts. He used the years 2007 and 2008 to get an average annual figure (which was then multiplied by three for each year of disturbance). There is always a danger of accounts being “cherry picked”. It is not our observation that this is what has happened here. Those are the two years immediately before the Proclamation date in 2009 which, as already observed, is the “specified date” for the compensation claim. Mr Wilson got as close to that date as he practicably could for the purpose of his award.
[34] The capitalisation rate is often the subject of dispute, but it was not suggested to us that the rate here used was inappropriate.
[35] Before us, the major contention for the Attorney-General appeared to be that the Matautu premises had been inappropriately “mixed in”. To put it another way, in a sense the waters had been muddied by this, so that is was not possible to say with sufficient precision what the portion referable to the leasehold site activity was. However this point had been recognised by Mr Wilson, as indeed it had been referred to in an earlier report by Mr Clark for the Attorney on improvements that the proper approach was to exclude the operations of the Matautu shop. That is an ice-cream shop and sewing operation. Appropriate adjustments had therefore been made with respect to that factor.
[36] We see no reason to set aside Mr Wilson’s business valuation, as the judge did. It proceeded on a rational basis, on a approved methodology. Very significantly there was not a opposing business valuation put before the court by the Attorney-General. In the simplest terms, what Mr Wilson was doing was coming up with a reasonable figure on the assumption - correctly we think – that the parties had agreed to a termination of the lease, and what compensation was required for that. The accords with the provisions of the Taking of Land Act to which we have already referred. The ongoing business is struggling on, at a loss, so there is no “contra” to be applied.
[37] The next issue is whether the judge was right to say that the appellants should be entirely deprived of all compensation by reason of their won conduct. There was much argument about this issue, both in the Supreme Court and before us.
[38] We think the respondent’s argument proceeded on a false premise. This is an award under the Taking of Land Act, the parties not themselves having come to an agreement. The land was taken by Proclamation. That date was 12 November 2009. Until that date Siva Afi was in lawful possession under a lease which had many years to run. It had no “duly to relocate” until after that date. And even then the expression is far from accurate: what Siva Afi had to do after that was to vacate.
[39] As Lord Nicolls observed (above), there is a general obligation on the appellants to act reasonably. This is quite different from a supposed duty to relocate. Siva Afi knew, prior to the Proclamation what was in contemplation. But it did not inflate its loss (as by enlarging its business) in the shadow period between the first information that its land would be required, and the Proclamation.
[40] Certain sites were put up for consideration and were found to be unsuitable, or were complicated by being reserve land. Even with the assistance of the Prime Minister of Samoa, a suitable site could not be located for a shift. That is hardly surprising. The land the subject of this dispute must be unique in Apia. It was a very large site, strategically place downtown.
[41] Effectively Siva Afi’s business was fractured. It had to retreat to its original site at Matautu for the screen printing business; the bar and restaurant have never been able to be resurrected: and the entertainment centre (the fire dancing show and associated) have had to operate in much less than optimal circumstances near the wharf.
[42] We content ourselves with observing that the appellants did not act unreasonably, much less that their conduct was absolutely disentitling.
[43] The business loss claim is allowed, in sum of $950,000.00

Improvements

[44] The appellants claimed an amount of $669,000 for the added value of improvements on the leasehold land. Vaai J awarded them the amount of $205,500.
[45] There were contending valuations on this issue. The judge relied on the evidence of Michael Clark, a valuer for the respondent, over the evidence of Mr Seru, the valuer for the appellants on this point.
[46] This issue was closely traversed by the Judge. He was understandably concerned about what he characterised as “glaring discrepancies” in the value of some of the improvements in the two Seru reports. He could see no credible or logical explanation for the sharp increase or decrease in construction rates in the physical size of buildings and structures. Mr Seru did not fare well under cross-examination. The judge accepted that the relevant structures were “substandard, below an acceptable level and could not be insured for cyclone cover”. The valuation report relied on by the claimants, as a methodology, simply valued the current market value of the improvements. It failed (as Mr Seru conceded) to factor in other concerns and relevant considerations which Mr Clark did in his report.
[47] It has not been demonstrated that the trial judge was in error on this issue. That ground of appeal accordingly fails.

Deduction for rents owing

[48] The trial judge held that Siva Afi owed $122,864.47 for rent, which sum should properly be deducted from the compensation.
[49] We were taken to such correspondence as there was during the lengthy term of the negotiations, which the appellants relied on as being a waiver, or perhaps in a loose sense an estoppels, of a claim by the Attorney under this head.

[50] Having considered the correspondence, we think a fair construction of the exchange that did take place was that the agreement to forego rent was to help with relocation costs. It was part of ongoing negotiations to try and reach agreement on an ultimate new site. In fact Siva Afi will have been fully compensated in law as a result of this litigation. In those circumstances the outstanding rent should be deducted.
[51] This head of appeal therefore fails.

Legal costs

[52] There are costs issues under three heads which arise for consideration.

Legal assistance on the taking

[53] A person whose land is compulsorily taken rather obviously will require legal assistance as to their rights and obligations, and those of the state. It would be quite wrong for the state to be able to take land and pay “full compensation” but leave the dispossessed person to attend to their own legal expenses. That would not be “full compensation” within the express terms of the statue.
[54] Here, Siva Afi claimed $71,146.83. Invoice were provided. The judge rejected the claim as being “to remote”. It is not easy to discern what was meant by that. In general legal usage the term means something that is too far removed to be legitimately within the contemplation of the claim.
[55] In our view that is not the case here. And also in our experience in takings cases, this is a routine allowable head of claim, so long of course as the costs are reasonable.
[56] We have nothing before us to suggest they are not here reasonable. Counsel for the Attorney-General suggested that possibly these fees related to work done, at least in part, on another matter. In fact an original claim of $115,266 had been amended downwards. We are in no position to ascertain any inappropriateness. The judge dismissed the claim only because of its “remoteness”, not on account of any such inappropriate charging factor.
[57] We therefore allow a claim for $71,146.83 for legal fees on the taking exercise.
[58] This sum is to be included in the taking expenses (as with the valuation costs, and will thus be within the interest bearing part of the award).

Costs on the Supreme Court trial

[59] At trial the judge left costs lie where they fell. In the result, the appellants recovered nothing for their legal expenses on that trial.
[60] The judge did not explain why he took the course he did. Counsel suggested from the Bar that he said that would be a matter for this court, although there is nothing in the judgment, or any court papers we have, to that effect.
[61] At that trial the appellants recovered nearly $300,000. The usual rules is that costs follow the event in civil trials. For the general rule see the recent decision of the Supreme Court of New Zealand in Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, and the observations of that court on the necessity for judges to give reasons on departing from it. It is hard to see why that rule would not have been followed in this instance, although in fairness to the Judge he may have taken the view that the plaintiffs had not succeeded on everything they claimed.
[62] In this court the correct compensations sum has been found to be substantially higher than was awarded in the Supreme Court.
[63] We consider the appellants should have their costs in the High Court. The difficult issue is that of quantum.
[64] We observe, as a general proposition, that when counsel appear before the Samoa Court of Appeal in civil cases they should attend fully prepared to argue costs issues and provide properly detailed and supported claims. This court is not well place to deal with costs issues subsequent to a hearing, given the present composition of the court. Miss Woodroffe should have brought forward a detailed claim for what costs she maintains the appellant should had had in the Supreme Court.
[65] We enquired of the Registrar whether there is a system of party and party costs in the Supreme Court of Samoa. We were advised, and accept, that there is a scale. But it is, as happened in New Zealand in recent years, now well out of date and could helpfully be reviewed. We have not been given any information as to what daily rated might be appropriate in Samoa.
[66] The position is distinctly unfortunate. We have to do the best we can as a matter of first principle. This was relatively high level litigation in the Supreme Court of Samoa. Taking cases are always regarded as difficult. The trial was over three days and would have involved – the papers are before us – a substantial amount of preparation.
[67] We have derived assistance from the decision of the New Zealand Court of Appeal in Minister of Works v Cromwell Farm Machinery Ltd [1986] 2 NZLR 29 ( a takings case arising out of the construction of the Clutha dam). The Court held that cases such as the present, “should result in awards of costs which, while not providing a full indemnity to the client on a solicitor and client basis, represent a more generous approach than is adopted or allowed in ordinary civil litigation” (per Sir Duncan McMullin for himself and Cooke P and Casey J ), at p 36. We agree with that approach.
[68] We allow a sum of $40,000 to the plaintiff, together with disbursements in the Supreme Court, which, if they cannot be settled between counsel, are to be fixed by the Registrar of the Supreme Court. The sum of $40,000 is arrived at on an allowance of $10,000 for insurance of the proceedings and the various associated filing; and $10,000 for each of the three days of trial.
[69] It would be unfortunate if this judgment were seen to be setting a “tariff” for Samoa. It is open to counsel in any future litigation, properly prepared, to submit that some other figures are more appropriate. We have taken this course because we are reluctant to have to refer this matter back for further attention by the Supreme Court. And further submissions would involve their own expense and logistical difficulties. It is desirable that this matter be concluded and that the parties know exactly where they stand on all issues.

Costs in this court

[70] The same problem applies in this court as in the Supreme Court because Ms Woodroffe was not properly prepared on the costs issues.
[71] Again, we consider costs should follow the event. Although the appellants have not succeeded on all the grounds of appeal, on the main point – the business loss – the appellant’s position has been substantially improved.
[72] In this court we allow the appellants $10,000 for cost together with disbursements as settled with the Attorney-General, or, if necessary, as fixed by the Registrar.

Conclusion

[73] The appeal allowed.
[74] Taking into account the adjustments made in this court, the award to the appellant will be as under.

• (a) Compensation

(b) Deductions:

Balance owing $1,306,512.60

(c) Interest to accrue on the sum of $1,306,512.60 at 12% from 16 June 2010.
(d) Legal costs on Hearing

The appellant will have

(i) Costs on the Supreme Court trial of $40,000.00 and disbursements as agreed or fixed by the Registrar.
(ii) Costs on the appeal to the Court of Appeal of $10,000 and disbursements as agreed or fixed by the Registrar.

[75] It is not completely clear to us whether the sum awarded in the Supreme Court has been paid. If necessary, counsel, can adjust the sum accordingly and of course interest should not run on monies from the date actual payment was made to the appellants.

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Honourable Justice Fisher

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Honourable Justice Hammond

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Honourable Justice Salmon